How To Stop Sexual Assault in the Ranks

Air Force women Trisha Loede, left, of the 39th Air Base Wing, hugs Ann Mitchell of the 39th Force Support Squadron, following a "dirty dash" at Incirlik air base in Turkey earlier this year as part of Women's History Month.

In the wake of the recent release of the Air Force investigation into sexual misconduct by Basic Military Training instructors at Lackland Air Force Base, Congress is likely to address the issue of military sexual violence through provisions in the pending National Defense Authorization Act.

With proposals ranging from creating military Special Victims Units, to reserving case-disposition authority for high-ranking officers, to strengthening penalties for offenders, legislators have vowed to get tough on crime against women in uniform.

But are they having the right conversation?

While enhanced prosecution is a laudable and necessary goal, the narrative of a broken criminal justice system only presents half the story behind the epidemic of military sexual violence. With its focus on the acts of individual offenders, the criminal justice system is simply not structured to serve as a vehicle for institutional reform or a means of empowering victims, whose role is usually limited to providing testimonial evidence.

The system, moreover, affords enormous discretion to police and prosecutors, up to and including the authority to opt against taking any action at all. In cases of sex offenses, prosecution is particularly sparse; around a quarter of police reports result in criminal indictment, and only half of those indictments yield convictions.

In the civilian world, recognition of these shortcomings has prompted the development of civil remedies for crime victims. Successful civil suits exercise an important deterrent effect, holding perpetrators accountable and encouraging negligent third parties to adopt enhanced safety practices. Victim lawsuits against third parties can be credited for the implementation of such standard security measures as the installation of door peepholes in hotel doors, the provision of adequate lighting in apartment common areas, and the employment of security guards on college campuses.

By exposing employers to significant financial consequences for failing to prevent and respond to sexual violence against employees, civil suits act as a powerful deterrent against workplace crime. Not only may victims sue their perpetrators, they can also bring negligence claims against employers who knew or should have known of the potential for the crime to occur. In addition, Title VII of the Civil Rights Act obligates employers to act when employees report threats, harassment or other potentially violent conduct in the workplace. Unless an employer can prove that it exercised reasonable care to prevent and correct harassment or assault, the employer can be held liable for the misconduct of its employees as well as for any retaliation suffered by victims for reporting such incidents.

Uniformed personnel, however, are barred from these avenues for relief.

Not only may they not bring personal injury claims under the Federal Tort Claims Act, they are also prohibited from suing the military for discrimination and harassment under Title VII. In fact, while military contractors and civilian Department of Defense employees may seek such remedies, uniformed personnel performing identical work in the same setting may not.

The absence of these remedies undoubtedly shaped the experience of the Lackland recruits, who reportedly felt compelled to agree to their instructors’ demands for fear of the consequences to their career if they disobeyed orders. In any other employment setting, they could have held their organization liable in the event of such retaliation.

Beyond imposing a toll on employers who fail to abide by the law, civil litigation also empowers victims by offering them an opportunity to vindicate their individual rights. Unlike in criminal court, where the prosecutor directs the course of the case, plaintiffs in civil proceedings can control such decisions as what type of evidence to bring and how much to seek in damages.

Few would argue that military personnel lack the right to be protected against crime; why deny them the means to enforce that right?

Rachel Natelson is the Legal Director for Service Women’s Action Network, a nonpartisan civil rights organization that works to transform military culture by securing equal opportunity and freedom to serve without discrimination, harassment or assault; and to reform veterans’ services to ensure high quality health care and benefits for women veterans and their families.

There’s a place where military survivors can talk to trained sexual assault professionals – without the chain of command ever finding out. Check out DoD’s Safe Helpline at safehelpline.org or 877-995-5247

Natelson needs to go out and buy a clue. Lawsuits only compel organizations to change if the settlement amounts are a significant monetary loss to that organization. If the settlement amounts are insignificant, then the organization simply considers settlements one of their many costs of doing business, pays out, and carries on as before.

i think I can write my comments with some experience. i retired as long-time Sgt -Maj - Inf and Mil Cols.

All my family are serving offrs and afghan vets. Cbt Engr/Inf. One is an ATC -she wanted to go inf- It WAS NOT FOR HER!That is the most brutal of all trades-though Cbt Engr - ranks right up there -as first in and last out!!This is not just a male t hing. women have there part in this. For better or worse. It takes time and experience t o sort out how it best runs. Maturity and manners!!Professionalism. Do Not ompromise yourself!!

When I was in the Army, my NCOs and officers would not have tolerated that kind of behaivor from their troops. Mostly they would have invited the offender behind the latrine and given them a medium set of lumps! The problem is a command problem, tolerating intolerable behavior. The problem stops when the serving men decide that they would not allow their sisters or daughters to be treated that way.

And what happens if there is a serious War going on? Sue the Army while fighting for the Army? Get top military leaders sacked when they are needed most? Nope, never going to happen. Law will be suspended and military culture will be reverted back right to where it is today

Being in the military for over 20 years, I've never seen a rape charge. I've seen sexual assault charges arise from people caught in the act of consensual sex or rumor, where both members careers are threatened; due to position, infidelity or jeaolousy. I do not believe rape is common by any means considering the contact and close quarters of male and female service members for extended periods of time.

this woman has obviously never served, and I wonder why such a respected organization such as SWAN would choose her as their spokesperson. Civil litigation is not the solution for getting after these predators.

As an aside, I previously reached out to SWAN for help, and Ms. Natelson did not even have a basic understanding of administrative law and when an administrative decision was ripe for review.

In the good old days of armies and sheep the subdued population invariable supplied women to satisfy certain lusts. In fact it was quite common for conquering armies to meld with the population. Those areas conquered and at peace usually had a good supply of prostitutes near bases. This was recognized as being a necessary part of servicing the army. So much so that the Romans minted coins paid to the troops which were specifically intended to be used in brothels and had the position embossed on them.

now of course that type of thin g is not politically correct, the dictat coming from people not in a war zone , miles away from loved ones for years at a time, so is it any wonder that some service women find themselves in a rape situation when being surrounded by a testosterone environment.

If we are not prepared to solve the issue as the Romans did then perhaps more time back home or with family abroad might make thing better. In the meantime a swift and speedy method of dealing with the problem seems to be required.

I'm sorry you were raped, please contact a congressperson and get a lawyer. While you endure the hell of retaliation, we will file a civil lawsuit against the military. It will only take 10 years if not longer to settle this. Meanwhile, suck it up. This is not the only answer. This is part of a long term solution to change a system that has repeatedly committed human rights violations and people have lost their lives as a result. We can't wait for these court cases to settle. What are we going to do now?

Let's say hell froze over and the law was changed so the U.S. military could actually be sued. We'll also assume that every year the U.S. military would have to pay out the same amount for sexual assault settlements as the Catholic church in the U.S. has paid out in total so far (over more than a decade of lawsuits) for child molestation settlements, which is about $3.2 billion (http://www.bishop-accountability.org/settlements/). Meanwhile the current typical annual budget for the U.S. military is well over $600 billion (in 2010 for example it was $664 billion). But we want to maximize the projected monetary losses to sexual assault lawsuits to the DoD, so we'll assume hell freezes over a second time and sequestration actually occurs, reducing the projected average annual military budget (http://nation.time.com/2012/10/24/with-war-ending-when-should-we-look-for-a-peace-dividend/) to slightly under $500 billion, which we'll just call $490 billion for simplicity. So even with a sequestered $490 billion dollar annual budget, paying out $3.2 billion per year in sexual assault settlements would cost the DoD just 0.65% of its annual budget.

agree with RickRanger. I seved 24 years with many women and diversified ethnicities. Sexual assault happens in all walks of life and not just in the military. There is and has been a coverup of this fact for many years. As for not being in this line of work; it is a great avenue for many and a career that few - male or female - can follow. Your comment is prejudice.

@RickRanger no one is discussing election results here dude. Sexual assault is wrong. But if I was a woman I would not in a million years choose as a career to be in an environment where I'm surrounded and outnumbered by men in their prime. Simple self preservation.